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Pariah S. Burke is the founder and editor-in-chief of Designorati; a site of information and interaction, where creative minds can find all they need in one place.

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Coping With Clients Who Use Your Concept Design—Without Paying
by Pariah S. Burke
A client has taken your concept design and hired someone else to execute it for less money. The client is reaping the benefits of your talent and skill, but you’re still eating generic mac n’ cheese. What recourse do you have?

Imagine (or remember) this common freelance design scenario: In the process of bidding on a project the prospective client asks you to provide a concept or visual representation of the ideas you propose. The concept will be part of your proposal to the client, and you will only receive compensation for the design if you win the contract. This is called “designing on spec,” and it’s a very, very bad idea. Even knowing how risky and foolish it is to design on spec (speculation), you need this contract, and you don’t believe you can convince the client to consider your proposal without a spec design. Being sick of eating store-brand mac n’ cheese for breakfast, lunch, and dinner, you design the project and hand over proofs.

A week (or month) later, you haven’t heard back from the client. Is the contract yours? Was the project delayed or killed? Did the client go out of business? Longing to buy real Kraft Mac n’ Cheese (it’s the cheesiest!™), you place a quick call to the client. She seems genuinely surprised to hear from you. “Oh,” she says. “We went with a different vendor with a more reasonable rate.” Damn! “One of our interns can do it for free, actually.” The hackles on the back of your neck stand up, but you’re not sure why. Mustering all your meager negotiation skills, you try to convince the client that, while the intern may seem like the perfect choice, a project of this nature really needs the hand of a professional with years of training and proven skills. Of course, your argument fails; the type of client who chooses free professional services has no concept of the value of education, experience, or her own company’s brand. Defeated by the unassailable fortress of deliberate ignorance, you thank the client and hang up.

A month later, as you’re trolling the Internet looking for any excuse to not think about the fact that you’ve exhausted all 1,001 ways to spice up bottom-shelf macaroni and cheese, you decide to check out the lost client’s Website. Let’s see, you say to the cat. Just how well that intern did.

When your heart starts pumping again, when air has once more flooded your lungs, you forcefully expel that air as a staccato of shouted expletives that rattle the windows and shatter the neighbor kids’ innocence. There, before your very eyes, is your design. But for a few hideous alterations here and there, the lost client’s new Website (or brochure, package, or whatever) is the spec design you had delivered with your proposal!

Ever found yourself in this scenario? If not, and if you design on spec, rest assured: You will.

But let’s not recriminate the desperate acts of hungry freelancers. While an ounce of prevention is worth a pound of cure, if you do find yourself mired in this situation, you need to have your pound of cure ready to drop onto the scale.

Let’s break this all too common scenario down into phases to first understand the mistakes made, how to prevent them, and then possible cures if it’s too late for prevention.

Phase I: The Proposal
MISTAKE: Designing on spec is the term for creating and delivering a design before officially being hired. Re-read the previous sentence (I’ll wait right here). Do you understand what that means? Designing on spec is you performing a valuable, professional service gratis—free—with no promise of compensation.

Do you think an attorney would appear in court on your behalf without some form of remuneration? Of course not. Lawyers work for clients to whom they aren’t related only in exchange for compensation of one form or another. This may take the form of hourly billings with or without a retainer, a percentage of any monetary award resulting from successful representation, or pro bono representation. While pro bono representation costs the client nothing, it isn’t altruism on the part of the attorney; every member of the bar is required to volunteer a certain number hours of pro bono work per year in order to remain a member of the bar—and thus, remain eligible to practice law. You will never find an attorney who will prepare a contract or appear in court for you on spec, hoping you will like the results enough to later elect to pay him.

Similarly, you’ll never locate a (sane) accountant to do your taxes, a psychologist to help you cope with the death of your pet turtle when you were eight, or physician to treat that strange rash, on spec. These are all educated, skilled professionals who expect to be compensated for the benefits you derive from the investments they made in their educations and skills. As a creative pro, you invested in your own education and skills; maybe you have a degree, maybe you learned on the job, either way, you invested time and money into learning your craft, and you invested hard currency in the tools of your trade (Creative Suite is a great deal, but it’s still $1,200). That’s your investment, like an accountant’s degree, certification, and very expensive software. Design is a profession, and, like any profession, you must be compensated for the benefits someone gains from the use of your talent, skill, and training.

When you design on spec, you are risking the all too easy forfeiture of any value inherent in your work and the talent, skills, and education that contributed to the work. Moreover, you’re teaching clients that your work—all design work—has no value.

The typical client serviced by freelancers believes that the value of a design is tied up in the way software is used. Think about that for a moment. Is the worth of carpentry determined by the swing of a hammer? Are Michelangelo’s tempera paintings more valuable than his sculptures because of their medium? More to the point, is a forger’s painting of equal value to the original masterpiece because the forger can mix the right pigments and duplicate the brushstrokes?

If you answered yes to any of these questions, please stop reading now. In fact, please go directly to GetAFreelancer.com and don’t return to Designorati—ever. Designorati is for professional creatives, and anyone who would answer yes to any of the previous questions is, emphatically, not a professional creative.

The value of graphic, Web, and other forms of design is not inherent in the use of Illustrator, DreamWeaver, or any other tool. You, are the value of your designs, your talent and skills. Design—visual communication—is not a product; it’s a service. And it isn’t the service of delivering paper or pixels. Design is the service of solving problems. Creative pros solve communication problems. We solve the problem of effectively communicating a message visually to an audience. I could link to a handful of tutorials that explain ways to create flaming text in Photoshop, but not one that will tell you when to use flaming text in a design. That particular question is the chasm that separates designers from hobbyists with Photoshop. I’ve known professional creatives who can’t use Photoshop to save their lives, but whose work is employed to communicate the messages of the world’s top brands. By the same token, I’ve met plenty of non-designer’s whose Photoshop skills put many a creative pro to shame. Knowing the steps to create a particular effect doesn’t equate to knowing why or when to use that effect in the course of communicating a message. I’m quite skilled with a sewing machine and pattern, but that doesn’t grant me the talent, skill, or right to call myself a fashion designer.

How you solve a communication problem is the real value of your design work. When you design on spec, you’ve already done the job for which you would have been hired. Thus you risk both the opportunistic client and the ignorant asking themselves: “I’ve already got all the free milk I needed, why should I buy the cow?”

PREVENTION: Simple: Don’t design on spec. Shyuh! Right, man! I’ll never get any work then! Of course you’ll get work. You just need to make Brand You strong enough that prospects won’t feel the need for spec designs from you.

Make the proposal stand on its own without a spec design that gives away for free everything you bring to the contract. Learn about proposals, how to write them effectively, and how to use them to promote the skills and experience you offer.

Build up your portfolio. Get a diversity of recent and show-worthy projects into your portfolio. The absolute strongest case you can make for refusing to design on spec—in terms the client can understand—is that your portfolio already displays your capabilities. Point out previous work similar to what the client wants. You could even include print-outs of such similar work in the proposal package.

How do you build up your portfolio? Well, that’s a subject for another (several) articles, but here are a few suggestions:

* Donate your services to legitimate charitable groups;
* Let your friends and family know you’re looking for freelance work and will take on reasonable friend-of-a-friend work for a discount (be careful not to allow this to become your main source of business), and;
* If absolutely necessary, fake it with makeovers of existing ads, Websites, brochures, or whatnot. If you go with the latter, be extremely careful: You will be using someone else’s trademark- and/or copyright-protected work. Therefore, you may only show it in your portfolio in such a way that clearly indicates that it is not official work; you cannot sell any of that work or use it for any gain beyond showing your portfolio to prospective clients. And, for Pete’s sake, don’t deceive anyone, through action or inaction, into thinking you were hired by the brand owner to do that work!

CURE: Ok. So you’ve written a winning proposal and tried to convince the client your portfolio should stand on its own without the need for a spec design. The prospective client isn’t convinced. What now?

First, it’s important to recognize that there are three types of clients who will ask for spec design:

The Ignorant. These people are clueless about the value of design as a concept, as a profession, and as the voice of their brand. They’re equally clueless about the concept of branding and how it relates to their business and market. They’re the type who pat you on the head and roll their eyes when you try to explain that Photoshop doth not a designer make. In most cases, they look down upon you, considering you a slacker playing with crayons in avoidance of a real job. You hold little value to them beyond the fact that they simply don’t have the time to learn to use the tools of your trade. They feel that, had they merely the time to read Adobe Photoshop Classroom In A Book, they would be every bit as capable as you of completing their project. Paying $350 an hour to their attorney just to courier a document to the courthouse is a good deal to them, but they balk at freelance design rates over $12 an hour.

Tactics for dealing with the Ignorant client who asks for spec designs:

* Do your best to convince them that they don’t need spec design, to use your portfolio instead.
* Walk away at a brisk pace. Be polite, thank them for their interest in you, express a desire to work together on future projects, but extricate yourself from the situation. Explain that designing on spec is too risky because you will have already done all the work without any assurance of being paid for your effort and time. The Ignorant client won’t understand or accept any of this, of course, but say it anyway, for your own peace of mind. Besides, if enough designers say it to the same client, it might eventually sink in. Using the phrase “it’s against the studio’s policy” often helps with the Ignorant client—especially in non-profits and other organizations that deal with the government. There, people have a tendency toward an innate understanding of bureaucracy and the unbreakable, holy Law of Policy.
* Find something in your portfolio that looks similar to their brand—possibly for a competitor. This need not be what you really want to design for them; it just has to stand in for the real work until you’re awarded the contract. There’s a risk with this tactic, however. If the client awards you the contract because they like that specific design, and it’s already in use by a competitor, you’re in hot water. You’ll have to convince the client that the spec design is not what they really want, that your new proof is the way to go.
* Make up a fictitious brand similar to the client’s, in the same business as the client, and spec design a project for that made-up brand. It has the same effect as pulling a pre-existing piece from your portfolio, while preserving your ability to hand over that design if requested. Of course, this tactic carries the same inherent risk of being ripped off as designing something specifically for this prospective client—albeit to a slightly lesser extent. The only reason for advocating use of a fictitious brand is the fact that the Ignorant client has a tendency to think anything with her organization’s name on it belongs to her organization (this is known as “Right of Ignorant Domain”). Thus, if you provide a concept or proof incorporating their logo or any element they legitimately own, you increase the risk of them using your work even if they don’t hire you.
* Failing all of the above (I honestly recommend you return to the “walk away at a brisk pace” tactic), make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it—including and especially your designs—will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights.

Ignorance and stupidity are two different things, as are consequential and deliberate ignorance. In many cases, Ignorant clients can be educated and converted to Good clients. In just as many other cases, clients are deliberately ignorant (or stupid), and you might as well be talking to a wall. Learn the difference between the two, and don’t bother with the latter.

The Dishonest. Although these types of clients typically do understand the value of design, they have no intention of paying for it. They want you to design on spec so they can see a professional solution to the problem, then they’ll hand it to someone with the skill to execute it for little or no cash outlay. Most times, this skilled but untalented person has already been selected, and is merely waiting to be told what to do. Sometimes Dishonest clients are obviously dishonest or slimy, sometimes not. The ones who make a career out of dishonesty are not easily pegged, which is why refusing to design on spec should be your policy in all cases, even with seemingly honest and educated clients. Also falling under this heading is the riskiest sort of prospective client, those who start out with the intention of paying for work, but then choose—or feel pressured into—an alternate course of action when they discover what honesty will cost them.

Tactics for dealing with the Dishonest client who asks for spec designs:

* Run like hell. Be polite, thank them for their interest in you, insincerely wish them the best of luck, but extricate yourself from the situation. If you know of a dishonest designer in your market, you may want to refer the client to him.
* Do your best to convince them that they don’t need spec design, to use your portfolio instead. This will fail.
* Find something in your portfolio that looks similar to their brand—possibly for a competitor. This need not be what you really want to design for them; it just has to stand in for the real work in case you’re awarded the contract. There’s a risk with this tactic, however. If the client awards you the contract because they like that specific design, and it’s already in use by a competitor, you’re in hot water. You’ll have to convince the client that the spec design is not what they really want, that a new proof is the way to go.
* Failing the above (I honestly recommend you return to the “run like hell” tactic), make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it—including and especially your designs—will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights. The Dishonest client will only sign it if he has a reasonable expectation that you will either not see the final (ripped off) design, or if he thinks you’re impotent and won’t be able to touch him even if you do see it.

The Good Clients. These are the clients we all want. They’re honest, sincere, and intelligent. They understand that design is both a craft that can be learned and a talent that cannot. While Good clients will often do much of their own design work in-house, they know when they need outside help. They’re also accustomed to dealing with freelancers, valuing the skill set and perspective a freelancer brings to a project. Such clients are either already familiar with typical freelance rates, or at least accept that they will need to pay more than the CEO’s 16-year-old nephew would ask. The Good clients will not steal from you; if they don’t hire you, they will have hired someone else with comparable skills and rates.

Although it may seem otherwise in your experience, Good clients outnumber the Ignorant and Dishonest by a substantial margin. Hang in there, you’ll find them.

Tactics for dealing with the Good client who asks for spec designs:
1.
Do your best to convince them that they don’t need spec design, to use your portfolio instead. Explain that designing on spec is against your policy as it is too risky and time-consuming, requiring that you do the majority of the work for which you would be hired, prior to being hired. This will often work. Note that when it doesn’t, the Dishonest client will use the same reasoning as the Good client.

2. Make up a fictitious brand similar to the client’s, in the same business as the client, and spec design a project for that made-up brand. It has the same effect as pulling a pre-existing piece from your portfolio, but while preserving your ability to hand over that design if requested. Of course, this tactic carries the same inherent risk of being ripped off as designing something specifically for this prospective client—albeit to a slightly lesser extent.

3. Failing all of the above, make them sign an affidavit guaranteeing that, should your proposal be rejected, all copies of it—including and especially your designs—will be destroyed, and that the client will not use any elements of your design for any purpose. State clearly that, unless paid for, the design remains your copyright protected material, to which you retain all rights. The Good client will often have no problem whatsoever with such an agreement.

Don’t design on spec is the golden rule of freelancing. Every freelancer who ignores it will wind up on the Graphic Designers’ Resource Group or another mailing list commiserating with others who ignored the rule. Show the prospective client why you are the best choice for the project, without actually handing them what you want to be paid to hand them.

Are there times when you should design on spec? No, but there are times when the risk is within acceptable limits (which is subjective, of course). For example, if a current client with whom you’ve worked without incident numerous times asks for a spec design, the risk is lower. You already know the client and have a good relationship. If the request is an exception to your standard practices, the client could be short on funds, looking at you to solve the problem while keeping a 16-year-old in the wings. Refusing, however, could jeopardize a long-standing relationship. Follow your instincts. They tell you when you need to use coffee creamer in your mac n’ cheese because the milk has just got to be too old, and they’ll generally steer you through unclear client dealings. Of course, without a contract that specifies exactly what you must be paid for everything you create, every relationship is effectively designing on spec.

Phase II: The Intern Gets the Job

MISTAKE: You probably should have contacted the client sooner in the above scenario, but let’s assume it was a “don’t call us, we’ll call you” situation. The mistake there is in not asking for return, or proof of destruction, of your spec designs. Again, spec design is always a risk, even with Good clients. But when the client tells you they’ve awarded the job to an intern, staffer, or somebody’s nephew, your head should fill with the klanging of alarms. Good clients—remember? The honest, sincere, intelligent ones?—will never opt for free labor as a substitute for skilled, talented work. You’ll only hear that from the Ignorant client or the Dishonest client, neither of whom you want to leave holding your valuable design solutions. Even phrases like “a vendor with a more reasonable rate” is a red flag if you know your rates are reasonable.

PREVENTION: There isn’t a great deal you can do to prevent the award of a job to someone else. If the contract goes to another professional designer, then her proposal, spec design, or rates were just a little more in line with what the client wanted. You have even less control over the job being awarded to someone who will do it for peanuts or nothing—especially if that person is already in-house.

Don’t make the common mistake of lowering your rates. Shop your competition, of course, and price yourself accordingly (this is another topic for a different article). But don’t try to compete with the interns and 16-year-old nephews. There’s nothing you can do, and even if you did charge a ridiculously low $10 an hour, there would always be those who will do it completely free. Consider feedback from Good clients relevant to your rates, but ignore anything the Ignorant and Dishonest clients say about that (or most) aspects of your business.

Lowering already fair rates will not get you more jobs and set you up with top-shelf mac n’ cheese. All it will do is scare away the Good clients who know what a professional should charge. Many a freelancer whose entire client list is ignorant or dishonest wonders why his $25 an hour isn’t landing him a Good or big client.

By now I’ve dropped enough hints that you should be asking yourself if your rates are too low.

CURE: Again, you can’t cure the loss of a contract to someone else—not unless you’re either a stellar salesperson or the other person is a terrible designer.

Phase III: Your Work Has Been Ripped Off
MISTAKE: Should you find yourself staring, mouth agape, at a screen full of your spec design that the client used without paying you, you should recall this article and try to imagine my voice, just beside your ear, booming: “I told you so!” This is exactly why the “don’t design on spec” golden rule of freelancing exists. More of freelancers’ spec work is ripped off than is actually bought (if you want to argue that point, be prepared with dated e-mails from provable e-mail addresses to counter my stack of the same).

The next mistake was not communicating to the client in Phase I: The Proposal that she couldn’t do anything with your design if you weren’t hired.

PREVENTION: Don’t design on spec, but if you feel you must, don’t leave it in the client’s hands after she’s declined to hire you. If you do leave it in the client’s hands, make sure the client knows she can’t use it.

Include in your proposal a clear statement that all concepts, sketches, proofs, and other materials remain your sole property until and unless paid for.

Better than that is to have the client sign an agreement in advance. If the client insists that you submit speculative designs, agree on the condition that the client sign an agreement covering their use. The agreement should state that you own any and all rights to the material, except client-provided portions, and that, in the event you are not awarded the contract, the client will destroy all copies of the spec artwork and shall not use it as the basis for their own designs.

Once you’ve been told you didn’t get the job, and if you didn’t cover destruction of artwork up front, ask the client to sign an affidavit of document destruction. Such a document certifies that all copies of your work in the client’s possession have been destroyed. Rather than spell out all the language here, you will find an Affidavit of Document Destruction as a downloadable Word document at the end of this article.

Note that, at this stage, the client has already rejected your proposal. You haven’t any leverage to insist they sign the Affidavit of Document Destruction. Don’t be surprised if they refuse. Most Good clients will have no qualms about signing it—odds are, they’ve already filed your work in the circular cabinet. The Ignorant clients who have a tendency to undervalue and dismiss you anyway, will likely not bother to sign it because they see no benefit to them of doing so. And, of course, the Dishonest clients are out to screw you anyway, so they’ll flat out refuse to sign it.

Regardless of whether any client signs it, you will have sent a message that you aren’t a fool, that you know your rights, and that you’re watching. Good clients already expect this of you and will not be put off by a reasonable demonstration of it—on the contrary, they will tend to think more highly of you when it comes to the next project. Ignorant clients, who didn’t know that the intern doing the mechanics of turning your paper design into a functional Website might not be legal or ethical, will be given the opportunity to prevent themselves from unknowingly making an expensive mistake (they might even learn something). The Dishonest ones might be scared away from their original plan to rip you off, and may move on to steal from someone who hasn’t read this article.

Sticking a copyright notice on your artwork is ineffectual in preventing theft. Do put that notice on there, unobtrusively (between 6 and 10pt san-serif type works best, no pretty typefaces), because that will help you effect a cure; it just won’t do squat for prevention. Don’t assume the client understands how copyright law works—odds are, you don’t understand how copyright law works.

Finally, and most importantly, save all correspondence with the client—especially relating to delivery of the spec design(s) and proposal. Copy yourself on all e-mail to the client. Don’t rely on your Sent folder. If the matter ever goes to court, a copy of a message that went out to the Internet, passed through an unaffiliated party’s mail server, then came back to you with proof that you really did send it to the client is far more valuable than a Sent folder message that has no such proof and can be easily faked.

With carbon copies of your messages containing the artwork and proposal, you now have independently verifiable proof that you had the design on the date of the message. If you’re extra cautious, send a copy to a friend, colleague, or your landlord.

CURE: At this stage, the damage is done. You’ve already seen that the client has used your spec design or based their work off of it. Now it’s time to recuperate your loss from that damage, or at least prevent the client from gaining any further value from your uncompensated efforts.

Your best bet is to consult an intellectual property attorney at this point, but if you’re eating macaroni and cheese most nights, you’ll want to put that off for as long as possible.

First, secure your proof. Don’t say a word to the client, no matter how angry you are, until you’ve secured court-admissible proof of the infringement.

If the work is online—say, a Website or downloadable document—make a PDF of the work that is, or resembles, yours, as well as any containing or referencing documents. Let me explain that last. If you designed a brochure, and they placed that or a similar design as a PDF brochure on their Website, get not only the PDF brochure, but also the Web pages that link to or describe that brochure—up to about a dozen pages if there are many. Make PDFs of the documents from directly within your Web browser or from Acrobat’s built-in function to fetch a URL and convert it to PDF. Make sure that the default date/time and URL headers and footers settings are intact. Acrobat, both during internal Web-to-PDF operations and from within the browser, adds the date, time, and original URL of the document into the resulting PDF as headers and footers. Should the client remove the infringing work from her Website, those headers and footers will be proof of the PDF’s authenticity.

Once you have all the relevant documents as a single PDF (combine PDFs if necessary), digitally sign and certify the PDF. This is important because it locks and protects the PDF forever, which is what makes it admissible in court under U.S. federal law.

Call a friend or fellow designer and ask her to do the same thing—this gives you a witness to call if necessary. Better still, get a competitor you dislike but respect to do it.

If you want to go for the overkill, print out a set of documents from the Website (not from the PDF, or you haven’t gained anything with hardcopy). Then, get the day’s newspaper. Hold it against a monitor displaying the infringing work on the client’s Website (make sure the Address or URL field is visible), and take a picture with a disposable film camera. Don’t use your digital camera. That might work for normal folk, but it could be argued that you have the skill to fake a digital photograph. Get your film developed on the same day you shoot the picture; this will establish the date more firmly than the newspaper.

Now, if we’re talking about printed matter, get your hands on several copies of the printed work. Enlist the aid of an accomplice if you would have to obtain the printed matter directly from the client (you don’t want to risk an altercation). Mail two copies of the material to yourself in separate envelopes. Pay the six bucks for registered, return receipt, which requires every postal employee who handles each letter to sign it—there’s an ironclad witness, the U.S. Postal Service. When the envelopes arrive, don’t open them; file them with the rest of your documents about this client. If litigation becomes necessary, you’ll open the envelopes in presence of the mediator or judge.

Got all your documents proving that you sent the client your artwork on a certain date, and that, on another date, they infringed upon it? Good. Now bill the client.

Send the client a bill equal to your original quoted amount. 30 days net, thank you for your business. On the invoice, describe the line item as “concept development” and include their original project title. Mail or FedEx—don’t e-mail—the invoice to the top ranking contact you have with the client.

If your client is anyone but the intentionally Dishonest, you’ll soon get a phone call.

When the call comes, be polite and friendly. Tell the client you like how she implemented your concept. You can even try inquiring about the production techniques employed before she cuts you off by saying she won’t pay. When she does, explain that, in your correspondence or phone call of such-and-such a date (be ready to use specific dates; don’t be uncertain about anything during this conversation), the client declined to hire you to execute the design. However, as of this other date, you observed your artwork in use on the client’s Website, brochure, or whatever. As you are the sole copyright holder of that design, you are more than happy to transfer rights over the client upon receipt of payment for the invoice—note the invoice number. If the client gives you the opportunity, explain it to her (even condescending Ignorant clients are more willing to listen when faced with unexpected bills).

Freelancers bill for the hours it takes to build something, but we’re really charging for our ideas and problem solving skills. That’s a difficult concept for clients to grasp, so we charge them for our build time, which is representative of the brainpower and skill exercised in the real work. It’s the same for attorneys, accountants, psychologists, and any other skilled professionals in a service industry; skills and knowledge are billed as time expended to actualize a result. In situations where someone with less skill or knowledge works at the direction of, or from the ideas of, a skilled professional—for example, a paralegal doing the research to backup a licensed attorney’s ideas—the rate is the same because the result is the same. When you solve the problem of communicating a message visually to an audience, that solution does not lose value because you assign the task of slicing images in Photoshop or preflighting your InDesign layout to your studio’s intern. Nor does your design solution lose value if the client asks one of her employees or interns to do the same.

By this point, the client will have likely directed you to perform some physically impossible act and hung up. So, say it in an e-mail. Thank her for the call, and explain that it’s unfortunate that she doesn’t feel that your rate is fair. Note that she was aware of the cost for use of that design on the date of the proposal (mention the actual date) and again during your telephone conversation of (the date you were told you didn’t get the contract). Offer the client an out. Tell her that, since she will be paying for the right to use your design concept anyway, you would be happy to go ahead and execute the originally specified mechanicals. (You could point out issues with the intern’s execution for leverage at this stage.)

In some cases, this actually works. The client will hire you to do the job, at which time you need to get her to sign your normal design contract. Don’t hand over anything until you’ve got cash in hand, though.

However, in most instances with Dishonest or obstinately Ignorant clients, this tactic will not work. Despite the bill and the letter, the client will still be operating under the assumption that you won’t pursue the matter further. Make darn sure you prove her wrong, or you’ll be dealing with clients like that your entire career.

If you have to take it further, follow these steps:
1. After 45 days from your original invoice date, send a new invoice without cover letter.
2. At the 60 day mark, add late fees and send a new invoice.
3. When the 90 day milestone begins to loom, talk to a business attorney. If the client is still using your work by that point, go to an intellectual property attorney instead (look under “patent” in the Yellow Page). Most attorneys will let you buy an hour of their time, which will get you a consultation and a letter to the non-paying client. The average person—even Ignorant clients—typically reacts in your favor when they receive a letter from an attorney demanding payment. Ask the attorney to give the client ten business days to remit payment.
4. If payment hasn’t arrived after the twelfth day, go back to the same attorney and ask about your options. If the infringing work is still in circulation, the attorney may elect to write a cease-and-desist letter that includes the very scary (and very realistic) figure of $50,000. That’s the current penalty for copyright infringement in the United States—per instance. That number, when written by the hand of someone who routinely effects its collection, has a tendency to open checkbooks in the direction of your original invoice (if less than $50,000).

What you should not do is give up. Do what you can on your own, then call in the hired legal guns. You also should not run around town (or the Web) discussing the client. Anything you say about the client publicly could be used to weaken your case in court. Keep fighting against the Ignorant and Dishonest clients. It’s important that you do, or you’ll keep working for the same type of clients, keep being taken advantage of, and keep eating your store-brand mac n’ cheese for the rest of your career. And that, is a fate worse than a day job.

The scenario above is, regrettably, common. Just about every freelancer who designs on spec finds herself mired in it at some point. Arm yourself with pre-emptive strategies to reduce the risks, and know your options for dealing with the results. Of course, the best strategy is to not design on spec.

For a designer-friendly primer on copyright law, including what every graphic designer, illustrator, photographer, and Web designer absolutely must know to protect herself, read chapter 5 of my book, Adobe Illustrator CS2 @Work—it’s about a lot more than just Illustrator.

Download my Affidavit of Document Destruction as a Microsoft Word document: Download (.DOC, 30k). You are free to customize and use it in your own freelance or studio design work, but please do not redistribute it, for free or for pay. If you want to share it with your friends, send them here to get it; then they’ll learn why they should use it, and when. (By the way, I do not design on spec. I wrote the Affidavit of Document Destruction for this article, and employ something similar under totally unrelated circumstances.)

 

 
2006, Pariah S. Burke
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